RT Journal Article
SR Electronic(1)
A1 Quinot, Geo
YR 2009
T1 Towards effective judicial review of state commercial activity
JF Tydskrif vir die Suid-Afrikaanse Reg,
VO 2009
IS 3
SP 436
OP 449
PB Juta Law Publishing (Historical content up to Sept 2015),
SN 0257-7747,
AB The state today participates in the market in a myriad ways - whether in a local capitalist market economy or the international market. It buys and sells goods and services ; employs a massive workforce; acquires, develops and disposes of land; engages in various financial transactions; sets up companies, holds shares and enters into partnerships. These activities account for large slices of domestic and international commercial activity, making them highly relevant from a commercial law point of view. But they are also of particular relevance from a constitutional perspective. Significant parts of the state's traditional public duties are closely bound up with its commercial activities. These links vary from basic acquisitions of goods used to carry out public functions to the direct use of commercial activity to fulfil such functions. A state department may utilise commercial forms institutionally by setting up a state-owned commercial vehicle to perform the particular function or transactionally by contracting with a service provider or even directly with citizens. It becomes important to consider state commercial conduct from a public law perspective when one considers judicial review as a central constitutional mechanism to control the exercise of public power and facilitate the achievement of public functions. Although this perspective has indeed long been recognised in privatisation debates and the state in commercial guise has become a familiar international feature, courts in most common law jurisdictions, including South Africa, still struggle to effectively deal with state commercial activity in terms of their judicial review function.Effektiewe geregtelike hersiening van kommersiële staatsoptrede